Regrets, but no apology

Posted Wed, April 25th, 2012 7:51 pm by Lyle Denniston

Saying they had regrets, but without apologizing directly, the federal government’s lawyers have admitted to the Supreme Court that the partial victory they won in a case three years ago was based on flawed information they had given to the Court. They filed a letter Tuesday “in order to clarify and correct” that information. The Court need not do anything about it, the letter suggested.

The problem with the information, supplied in the 2009 case of Nken v. Holder (docket 08-681), was not turned up by the government. Rather, it turned up in a federal court in New York City when immigrants’ rights attorneys demanded an explanation for a policy statement on which the Supreme Court had relied in deciding the Nken case. The policy that the goverrment had told the Court existed apparently did not exist. (This controversy over what the Justices had been told by the government was discussed on this blog in this post in February.)

In the new letter to the Court, Deputy Solicitor General Michael R. Dreeben did not concede that the information provided in the government brief in that case was actually wrong. Rather, it said, the information was designed to “encapsulate” information gleaned within the government as the brief was being prepared. “The government,” the letter said, “should have provided a more complete and precise explanation.”

The Nken decision came down three years ago this month. Lately, the government had been resisting — in a federal District Court in New York City — the forced disclosure of an exchange of e-mails that supposedly was in the background of the information supplied to the Justices in Nken. The District judge had ordered the government to hand over at least parts of those e-mails, and the government earlier this month challenged that ruling in an appeal to the Second Circuit Court.

This week, the government told both that judge and the Supreme Court that it was abandoning that appeal, and would now agree to turn over most — but not all — of those e-mails. The judge on Wednesday issued a new stay in the case there to allow for the partial disclosure that the government has now promised.

The Nken case involved the rights of non-citizens living in the U.S. who were facing deportation. The individual at the center of that case, Jean Marc Nken, was a national of Cameroon, but claimed that his scheduled deportation would lead to persecution if he returned to that country. He was married to a U.S. citizen, and they had a son who is a citizen. His lawyers took the case to the Supreme Court to get clarification of when a federal appeals court could postpone a deportation order, while the non-citizen involved sought to challenge the legal basis for being sent home.

The Court ruled that Nken and non-citizens like him who were deported while their challenges remained in court could seek delays while their appeals were pending, but would not suffer “irreparable injury” if they were deported in the meantime because, the Court said, they could continue their challenges and, if they won, they could return to the U.S. and regain the same status they had had before being deported. That, the Court said, would be “effective relief.”

Those statements were based on what the government had said in its brief about its policy. But immigrants’ rights attorneys in response contended that they were not aware of any such policy, and wanted to know just what that policy was so they could pursue it for their clients. To get at the policy’s origins and explanations, they sued in New York under the Freedom of Information Act.

It was during that proceeding, the letter to the Supreme Court said Tuesday, that the government decided to make a new review of policy on what would happen to a non-citizen who had won a challenge to a deportation order. After conducting that review, the letter said, “the government is not confident that the process for returning removed aliens, either at the time its brief was filed or during the intervening three years, was as consistently effective as the statement in its brief in Nken implied. The government therefore believes that it is appropriate both to correct its prior statement to this Court and to take steps going forward to ensure that aliens who prevail on judicial review are able to timely return to the United States.”

The letter then outlined those changes in detail.

In closing the letter, Deputy Solicitor General Dreeben said that “the government recognizes its special obligation to provide this Court with reliable and accurate information at all times.” It said the federal lawyers had tried to do that in this case in “good faith,” adding that “we regret the necessity for this letter.”

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.